The Fourth
Amendment
Warrantless Searches Are Always Illegal
By de Andréa,
Opinion Editorialist for
‘THE
BOTTOM LINE’
Posted 2015 as a reverence
The historical record of the
Fourth Amendment makes it clear that there are never any exceptions.
AMERICANS
HAVE BEEN SIMMERING WITH ANGER IN RECENT YEARS over revelations about the NSA
and FBI taping into everyone's phone-calls, email, "social media"
posts and so on, along with other systematic, institutionalized privacy
assaults. This widespread ire has been met with predictable political-class
nonsense: lies about the extent of the violations, efforts to downplay the
significance of the violations, and arguments that it's all for a good cause
anyway, so everyone should just get over it.
All
of these evasions and smokescreens are bad enough, just for the insult thereby
offered to an angry America: "We're not only mugging you, but we
also believe you're too stupid to stay incensed about it if we throw some
eyewash your way..."
But
the apologias and efforts to pacify us aren't the worst offenses. Far more malicious
is the real assault
on our sensibilities and the frayed sinews of our Constitutional structure in
the form of repeated assertions by the perps that these privacy violations are
"lawful".
They
are not.
There
is no such thing as an unwarranted but "reasonable" search
I am going to go Antonin Gregory Scalia on you
here, (who was an Associate Justice of the Supreme Court of the United
States from 1986 until his assassination by the Deep State in 2016).
Because it seems that Scalia and I both went to the University of Hillsdale Michigan and studied the History of the U.S. Constitution, which lawyers by the
way are never taught.
THE
RATIONALE FOR ASSERTING THE "LAWFULNESS" of warrantless
extra-domicile and electronic searches and seizures [of physical property and
data] has rested on reading the Fourth Amendment as allowing for
"reasonable" searches and seizures without the need for warrants. But
this is a distorted construction of the amendment's prescriptions and proscriptions;
a "constortion", if I may be allowed make up a word or to coin a
term.
Under
the constortion, the word "unreasonable" in the amendment is read as
isolated from the remainder of the amendment, or as a qualifier of the warrant
specifications that follow. Under the constortion, "unreasonable" is
seen as included in order to distinguish an imagined "reasonable"
search-- which, because "reasonable", needs no warrant-- from an
"unreasonable" search, which, because unreasonable, does need
a warrant.
But
in fact, the historical record makes clear that this is in no way the Framers'
intent-- rather, "unreasonable" appears in the amendment solely as an
expression of the Framers' view that ANY search or seizure unauthorized by a
warrant secured under stringent standards of testimony and cause is thereby
inherently UN-reasonable, and a violation of the amendment.
In
the amendment, "unreasonable" means "without reason" (an
illuminating synonym of which is "unwarranted"). What follows after
that term is not a proscription for how "unreasonable" searches or
seizures are to be conducted. Instead, what follows are the requirements for
the establishment of an amendment-satisfying reason for a search or seizure.
FRANKLY,
THE LANGUAGE OF THE AMENDMENT ALONE makes its real meaning plain enough to
anyone reading it fairly, and without a wish to constort in service to a
government desire to be let off its Constitutional chain. We'll go to the
historical original-intent records in a moment, but first, let's just look at
that current language:
“The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”
Fairly
read without an intent to misunderstand, there is no way this language can be
honestly construed as a Constitutional statement (or even mere implication)
that certain searches and seizures can be lawfully conducted without warrants.
On the contrary, this language plainly says that right of the people to be
secure against searches and seizures without a valid reason shall not be
violated, and establishment of a valid reason requires an allegation of
probable cause under oath, with particularity, considered by an appropriate
officer authorized to issue warrants.
That
is, "unreasonable" in the amendment doesn't mean "out of the
ordinary", "excessive" or "in violation of reasonable
expectations of privacy" as federal courts have variously constorted the
amendment over recent decades. Rather, "unreasonable" means just what
is says: "conducted without a properly-established reason," and is
followed by the requirements by which a valid reason must be established.
However,
my perceptions and arguments of the proper reading of the amendment's language
needn't be relied upon to make my case. The writings the Founders and Framers
provide all the clarification needed against even the most willfully obtuse
reading.
The
historical records are clear and definitive
LETS
LOOK AT THE LANGUAGE of some contemporaneous alternative versions of the Fourth
Amendment. Keep in mind that these measures reflect the fact that at the time
it was understood that some kind of warrant was required for any search or
seizure, which was why the colonial-era British went to the trouble of issuing
"general warrants" even when intending to conduct searches
unsupported by sworn allegations and particularity.
Here,
as a first example, is the Fourth Amendment counterpart from the Declaration of
Rights in the Pennsylvania Constitution of 1776:
“That the people have a right to hold themselves, their
houses, papers, and possessions free from search and seizure, and therefore
warrants without oaths or affirmations first made, affording a sufficient
foundation for them, and whereby any officer or messenger may be commanded or
required to search suspected places, or to seize any person or persons, his or
their property, not particularly described, are contrary to that right, and
ought not to be granted.”
Consolidated,
this reads: "[T]he people have a right to be free from search and seizure
[of any kind-- houses, papers and possessions, with no limiting specifications
provided], and therefore warrants [again, the only mechanism recognized at the
time by which any kind of search was permitted] ought not
be granted without sworn allegations providing a sufficient foundation, and
without particularity."
Similarly,
the Virginia Declaration of Rights, another early version of the Fourth upon
which the federal Constitutional amendment was modeled, reads in pertinent
part:
“That general warrants, whereby any officer or messenger
may be commanded to search suspected places without evidence of a fact
committed, or to seize any person or persons not named, or whose offence is not
particularly described and supported by evidence, are grievous and oppressive,
and ought not to be granted.”
That
is, "[S]earch[es]...without
evidence [which is to say, testimony, which is to say, sworn]...are grievous
and oppressive, and ought not be granted."
Both
of these contemporaneous alternative versions of the Fourth Amendment plainly
declare that searches and seizures without sworn allegations and particularity
are unreasonable and prohibited. In fact, the Pennsylvania version expressly
declares that any search and seizure unsupported by sworn allegations of cause
and/or lacking particularity is contrary to the right constitutionally asserted and
secured therein.
James
Madison, in arguing before Congress for the inclusion of the Bill of Rights
(and, again, speaking in the context of ALL searches and seizures requiring a
warrant), described his intent for the Fourth thusly:
“The rights of the people to be secured in their persons;
their houses, their papers, and their other property, from all unreasonable
searches and seizures, shall not be violated by warrants issued without
probable cause, supported by oath or affirmation, or not particularly
describing the places to be searched, or the persons or things to be seized.”
Massachusetts,
in its Constitution of 1780, put it this way:
“Every subject has a right to be secure from all
unreasonable searches, and seizures of his person, his houses, his papers, and
all his possessions. All warrants, therefore, are contrary to this right, if
the cause or foundation of them be not previously supported by oath or
affirmation; and if the order in the warrant to a civil officer, to make search
in suspected places, or to arrest one or more suspected persons, or to seize
their property, be not accompanied with a special designation of the persons or
objects of search, arrest, or seizure: and no warrant ought to be issued but in
cases, and with the formalities, prescribed by the laws.”
Plainly,
the Framers adopted the Fourth Amendment to ensure that all searches
conducted anywhere, at any time and under any circumstances other than arrest for conduct just committed are based on prior
establishment of probable cause by sworn testimony, with particularity as to
what is to be sought and seized. There JUST IS no "reasonable search"
exception that can be construed from the amendment.
The
"unreasonable" in the Fourth's language doesn't distinguish one kind
of search which needs a warrant from another kind that does not. Instead, it
serves to label all non-conforming searches as thereby
unreasonable and thus barred by the amendment.
The
law hasn't changed, and modern unwarranted searches in fact are
illegal
WHAT
WAS UNCONSTUTIONAL YESTERDAY is still unconstitutional today, absent a properly
executed intervening amendment? Searches or seizures of any kind-- anyplace,
anytime and of anything-- without a warrant based on a sworn, credible and
specific allegation that evidence of a crime will be found are
Fourth Amendment violations. There are no exceptions my friend.
"An
unconstitutional act is not law; it confers no rights; it imposes no duties; it
affords no protection; it creates no office; it is in legal contemplation, as
inoperative as though it had never passed." -16 Am Jur 2d, Sec 177 late 2d, Sec
256
***
I
MENTIONED EARLIER that law-defying courts have constorted a "reasonable
expectation" rationale for warrantless searches. This concept merits a
little special attention.
The
"reasonable expectation" dodge is based on the idea that the
government is not restrained by the principle of the Fourth Amendment insofar
as it looks at things (or people) who have (as the courts see it) waived their
privacy expectations by setting foot outside their shades-drawn, windows-closed
homes.
If,
the courts reason, you step outside (or send data by means or processes not
entirely within your exclusive control), you must or should expect that you or
your data will be photographed, followed, eavesdropped-upon or intercepted by
government spies. Therefore (goes the argument) such searches are
"reasonable" and the government can freely do these things.
This
view turns the principle behind the Fourth Amendment on its head. As noted
above, there can be no reasonable (and thus permissible) searches or seizures
not supported by the requirements specified for a warrant.
However,
this "reasonable expectation" argument is also corrupt nonsense on
roller skates on its own terms alone. Here's why:
It
is true that you may not have a reasonable expectation that NO ONE ANYWHERE
will see anything personal and otherwise private when you step outside or
create, send, receive or store data outside your house. But you sure as Hell have a reasonable
expectation that the government won't be looking at it without oath-supported
probable cause and particularity.
In
fact, that you can go about your business in public or in private unmolested by
prying eyes and that only your service provider will see your transmitted data
absent a proper warrant being issued is the only reasonable expectation. Any
alternative expectation would require a patently UN-reasonable belief that the
courts have actual authority to eliminate the Fourth Amendment, and we all know
better than that. At least I hope that we do!
THE
TRUTH IS SIMPLE, and requires no nonsense about "expectations" (a
concept-- that the measure of someone's rights or of the restrictions placed by
the Constitution on the state could rest on "expectations"-- which is
on its face nauseatingly demented).
What's
been going on with the NSA, CIA and FBI and who knows what other perps has been
a serial felony, apparently committed over and over against each and every
American. Don't let creative, self-serving nonsense from the criminals or their
co-conspirators fool you into quietly accepting lies that let them off the hook
and destroy the rule of law at the same time.
Thanks for listening my friend! Now go do the right thing and fight for
freedom.
- de Andréa
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